Taking a stand by not standing at all

The National Football League has recently become a heated battleground as more players continue to engage in peaceful protests, despite comments made by President Donald Trump about standing during the national anthem.

If you are an avid fan of sports, particularly the National Football League (NFL), then on October 8, 2017 you became witness to what appears to be a staunch peaceful protest by players, coaches, and executives of different backgrounds in response to comments made by President Donald Trump. In a speech given during a rally in Huntsville, Alabama on September 22, 2017, President Trump spoke on topics ranging from his ties with the Russian government to calling North Korean dictator Kim Jong Un “little rocket man.” It was his seemingly out of place remarks surrounding NFL players kneeling during the national anthem, though, which took the spotlight for the evening. President Trump addressed the crowd saying, “[w]ouldn’t you love to see one of these NFL owners, when somebody disrespects our flag, to say, ‘get that son of a bitch off the field right now, he’s fired!?’” The crowd roared as Trump took dramatic pause and then went on to mention that the NFL owner who engaged in such actions would be the most popular person in the country due to the disrespect that the protest brings.

Kaepernick responded by saying, “I am not going to stand up to show pride in a flag for a country that oppresses black people and people of color.”

The protest that President Trump referred to was started by current NFL free agent and philanthropist Colin Kaepernick. A star quarterback who attended the University of Nevada and went on to start for the San Francisco 49ers, Kaepernick initially began sitting during the national anthem in the 2016 NFL Preseason, which surprisingly went unnoticed on the first two occasions. This was probably because Kaepernick was not in uniform; but, upon the third game when his uniform was on display, his protest gained national attention.

When asked why he was protesting the anthem, Kaepernick responded by saying, “I am not going to stand up to show pride in a flag for a country that oppresses black people and people of color. . . To me this is bigger than football and it would be selfish on my part to look the other way. There are bodies in the street and people getting paid leave and getting away with murder.” Kaepernick’s comments were referencing the recent rise in police shootings of unarmed black men and children across America.

In 2016 the number of deaths by police was 1,091, which was actually a decrease from the previous year’s total of 1,146. Of those deaths, black people were killed at a rate of 6.64 individuals per million residents. This number was over two times higher than that of white people, at 2.9 individuals per million. Notably, Native Americans were killed at an alarming rate of 10.13 individuals per million, but it should be taken in context that Native Americans comprised around 40-50 of the 1,091 deaths. From these tragic deaths, outrage found its breaking point on July 5 when Alton Sterling, a black man, was shot several times while being held down by two white Baton Rouge Police Department officers. The tragedy was captured on a smartphone camera and posted to the internet. Within minutes the video had spread across the world like wildfire. A day after the killing, hundreds of Black Lives Matter demonstrators gathered in Baton Rouge demanding the Department of Justice investigate the death.

A college teammate of Kaepernick at Nevada gave his opinion to the Denver Post by saying, “I’m not against the military. I’m not against the police or America, I’m against social injustice.”

Throughout the 2016 NFL season, Kaepernick was cheered and criticized by people from all walks of life, even his own NFL colleagues. Kaepernick’s message was further spread when Denver Broncos’ starting linebacker Brandon Marshall kneeled during the Broncos’ regular season opener. New Orleans Saints star quarterback Drew Brees felt compelled to speak out against Kaepernick’s initial protest because it had been “bothering [him] all day long.” He told ESPN, “[H]e can speak out about a very important issue. But there’s plenty of other ways that you can do that in a peaceful manner that doesn’t involve being disrespectful to the American flag.” It’s interesting that Brees would use the word peaceful as to suggest there was something aggressive about Kaepernick kneeling, but in any case, Brees’ comments about the flag come from a perspective that is present in many who oppose the protests. It should be recognized that during the time Kaepernick was a player in the NFL, he had a stage on which to bring awareness to a social issue he felt was not being properly addressed. Notable figures in the entertainment industry have frequently used their platform to convey a message they believe in and want others to be made aware of.

A college teammate of Kaepernick at Nevada gave his opinion to the Denver Post by saying, “I’m not against the military. I’m not against the police or America, I’m against social injustice.” He went on to support Kaepernick by stating, “[H]e’s using his platform how he wants to use it, to reach the masses, [w]e have freedom of speech. But then we use our platform, and we get bashed for it. It’s almost like they want us to only go with the grain. And once we go against the grain, it’s an issue.”

The first amendment to our Constitution prohibits Congress from making any law that “abridg[es] the freedom of speech.” Effectively, the government cannot silence the speech of citizens because it may be deemed an unpopular opinion; however, that does not mean that private citizens cannot silence other private citizens who have a voice. Inside the NFL’s operations manual, there is a section outlining the national anthem. This section states that the anthem “must be played prior to every NFL game, and all players must be on the sideline.” The next sentence states that during the playing of the anthem, “players on the field and bench area should stand at attention, face the flag, hold helmets in their left hand, and refrain from talking.”

The word choice change from “must” to “should” suggests that it is not mandatory for players to stand for the anthem. The league has clarified that such a suggestion is true. Failure to adhere to the policy may result in discipline such as fines, suspensions, and forfeiture of draft picks; however, no player has been disciplined for their demonstrations by the league to date.

Not only may the NFL operations manual be used in the protesting players’ favor, but federal law may also strengthen their right to protest. The United States Code (USC) Chapter 1 contains the Flag Code. Section 8 is entitled “Respect for flag.” Notable portions within this section mention that the flag should never be carried flat or horizontally, but always aloft and free and that the flag should never be used as wearing apparel, bedding, or drapery. The USC also addresses conduct during the national anthem. It states that all persons present should face the flag and stand at attention with their right hand over the heart, among other things for people in uniform and members of the Armed Forces.

It can become difficult to make the argument that Kaepernick and others are actually disrespecting the flag when it has been printed on merchandise of all kinds to be sold commercially and carried horizontally at many NFL games. In any event, Kaepernick’s demonstration eventually landed him on the NFL free agency list and subsequently out of the NFL at the conclusion of the 2016 season; however, Kaepernick’s career setbacks did not stop his movement for change. He pledged one million dollars of his NFL salary to helping community organizations and has clothed parolees with suits to help provide a chance for those trying to find a place of economic freedom and reduce recidivism rates.

Trump’s attack on the NFL and its players have raised questions as to who or what is actually being protested in the 2017 season.

President Trump is of the opinion that if the NFL had suspended Kaepernick for 1 or 2 games “he would have never done it again” and they “would have never had a problem.” Suspending Kaepernick may have taken him off of the playing field, but that does not mean he would not have been able to peacefully protest on the sidelines. Between President Trump’s comments and his blistering rhetoric during his speech in Alabama, Trump’s attack on the NFL and its players have raised questions as to who or what is actually being protested in the 2017 season. The Sunday following Trump’s speech, NFL teams and players responded to his criticism by demonstrating in various ways.

The Jacksonville Jaguars began the day in London by linking arms during the national anthem with some players kneeling and others standing. Owner Shahid Khan joined the players in linking arms on the field in solidarity with the team. When asked about his decision, he stated, “I met with our team captains prior to the game to express my support for them, all NFL players, and the league following the divisive and contentious remarks made by President Trump, and was honored to be arm in arm with them, their teammates and, our coaches during our anthem.” This comes after Khan donated $1 million to the President’s inaugural committee. Khan is not the only owner who stood in solidarity with players and coaches on the field. Across the league, owners ranging from Arthur Blank of the Atlanta Falcons to Patriot’s owner Robert Kraft stood with players and criticized the President’s comments as “deeply disappointing” and “creating division.”

Some teams even failed to appear during the national anthem, violating the league’s national anthem policy, but some expressed a message that did not necessarily encompass civil disobedience. The Tennessee Titans versus the Seattle Seahawks game in Nashville, Tennessee featured both teams not appearing for the national anthem at all. The Titans announced they wanted to be “unified” in their actions and that their absence “shouldn’t be misconstrued as unpatriotic.” The Seahawks took an opposite stance stating that they would “not stand for the injustice that has plagued people of color in this country.” The Pittsburgh Steelers also did not appear in a game because they too wanted to remain unified in the manner that the Titans expressed. President Trump responded by saying that he supported the linking of arms, but still rejected those players who chose to kneel and that the NFL “must respect” the “Country, Flag, and National Anthem.” These demonstrations again sparked polarizing responses from fans around the league. Supporters tweeted and hashtagged #TakeTheKnee while some knelt during the national anthem themselves in stadiums around America. Dramatic opponents of the demonstrations burned their jerseys and season tickets swearing they’d never support their particular team again.

At a scheduled league meeting on October 17, 2017, player protests will be a topic of major discussion, but there does not appear to be any immediate changes on the way.

These types of responses only furthered the National Anthem narrative tension. Dallas Cowboys owner Jerry Jones released a statement that any Dallas Cowboys’ player who did not stand would not play for his team. He referenced the NFL operations manual policy mentioned above as the basis for this change. That same week, the Cowboys as a team, including Jones, knelt on the field and linked arms in solidarity before the anthem, then stood, still locking arms, as the anthem played. As the owner of the team, Jones has the right to implement this workplace policy and it seems there is nothing that can be done to combat this decision without negative consequences. It is difficult to reasonably justify Jones’ decision to alter the direction of the protest, but the argument can be made that there are other ways players can speak out against social injustice. No matter what side of the line one stands (or kneels) upon, it is clear that the right to speak freely using the NFL as a platform is in danger of being restricted.

At a scheduled league meeting on October 17, 2017, player protests will be a topic of major discussion, but there does not appear to be any immediate changes on the way. The league office is concerned that the message the players have been conveying of fighting oppression, racism, and police brutality has been morphed with the injection of Trump’s comments into a message of disrespect for veterans and our nation’s armed forces. They are going to encourage players to follow the policy manual and have vowed that conversations with players will continue to strive for positive change in communities across America. However, it does not appear that the league is intent on silencing players and wants to work on having “a measure of solidarity moving forward.”

[U]ntil they are able to refocus the discussion back to issues surrounding social injustice, it does not look like great strides will be made.

It seems many are weighing in on how military individuals see these demonstrations, and they too are on both sides of the aisle when it comes to the message players are sending. Brian Sullivan, a 71–year old Vietnam veteran was brought to tears when he saw more than a dozen players from the Patriots kneel. “Bottom line is that, even though their grievance has merit, there has got to be a better way to address it than kneeling during our national anthem,” Sullivan said.

To many, perception is reality, whether it is the perceived disrespect to our flag and national anthem, or the perception that improvements need to be made in community policing of our minority neighborhoods. Master Sergeant Pete Mayes, a 20–year veteran in the Army, is personally “not offended” by the peaceful protests and believes that “our personal beliefs do not and should not supersede our professional duty and obligation to defend the Constitution of the United States.” It appears that veterans have been made a focal point of this entire demonstration whether players intended for that to happen or not. Until they are able to refocus the discussion back to issues surrounding social injustice, it does not look like great strides will be made.

What started out as a silent protest by one man who wanted to bring awareness to racial injustice has become one of the most polarizing events in our nation this year. It does not matter what socioeconomic status or race one comes from; everyone seems to have an opinion about the NFL and the continued demonstrations from players. As the 2017 season continues and policies are revisited and enforced, it will be interesting to see how everyone in America will react. From players and coaches, to fans and executives, it is important to remember that we as American citizens have a right to speak freely for what we believe in. When this right is infringed upon by private citizens, we defeat the bedrock constitutional right that has shaped our country since the 1700s. Keeping an open dialogue appears to be the best course of action for this divisive issue and one can only hope that all will keep an open mind and open mouth going forward.

Tommy Harvey III is a third year law student and serves as an Associate Editor for the Campbell Law Observer. He is originally from Atlanta, GA and received his undergraduate degree from the University of Miami. Tommy has worked for the United States Attorney’s Office, Eastern District of North Carolina and the Mecklenburg County District Attorney’s Office in Charlotte, NC. His legal interests include Civil Rights Law, Constitutional Law, and International Law. Tommy is a member of the Campbell Law Trial Team, and serves as a peer mentor as well as the current Vice President and past Treasurer for the Campbell Law Black Law Students Association.

This is a full recording of the debate hosted by the Federalist Society and the American Civil Liberties Union chapters of Campbell Law School. The speakers include Dr. John S. Baker, Jr. and Elizabeth Haddix.